Missouri Pac. Ry. Co. v. MacKey

• Decision Date: 07 March 1885
• Citation: 6 P. 291,33 Kan. 298
• Parties: THE MISSOURI PACIFIC RAILWAY COMPANY v. PATRICK MACKEY. [*]
• Court: Kansas Supreme Court

6 P. 291

33 Kan. 298

THE MISSOURI PACIFIC RAILWAY COMPANY v. PATRICK MACKEY. ^[*]

Supreme Court of Kansas

March 7, 1885

Error from Atchison District Court.

ACTION brought by Patrick Mackey against The Missouri Pacific Railway Company, to recover damages for bodily injuries. Trial at the June Term, 1884, and judgment for plaintiff for $ 12,000 and costs. The Company brings the case here. The material facts are stated in the opinion.

Judgment affirmed.

Everest & Waggener, for plaintiff in error.

John C Tomlinson, and Thomas P. Fenlon, for defendant in error.

JOHNSTON J. VALENTINE, J. HORTON, C. J., concur.

OPINION

JOHNSTON, J.:

This action was brought by Patrick Mackey against the Missouri Pacific Railway Company, to recover for personal injuries sustained by him while employed by the defendant company as fireman upon a switch engine, and which injuries he alleges were occasioned solely by the gross carelessness and negligence of the employes of the railway company other than himself.

Among the facts about which there is little if any dispute, may be stated the following: The railway company has control of two track yards, in and adjacent to the city of Atchison, commonly designated as the "upper yard" and the "lower yard," and which are about one mile apart. On February 11, 1882, the defendant company was using and operating two switch engines with their crews in these yards in running and switching cars; the engine designated as number 166 being chiefly used in the upper yard, and the other, known as number 154, being principally used in the lower yard, although each engine also hauled and pushed cars from one yard to the other, and both engines and their crews were used in the common employment of the defendant. The plaintiff was serving as fireman on engine number 166. On the day the accident occurred, number 154 started from the lower yard with from ten to fifteen loaded cars for the purpose of placing them upon the side tracks in the upper yard, where engine number 166 was at the same time employed in transferring cars from one point to another in the upper yard. About the time that number 154, going westward, entered the upper yard, engine number 166 was backing eastward, when the two engines collided, wrecking the engines, and crushing plaintiff's foot and leg so that it became necessary to amputate it, which was done on that day. The collision occurred on a bright clear day, between eleven and twelve o'clock in the forenoon. The ground was level, and the track was straight for a distance of about a quarter of a mile east of the point of collision, and the engineer in charge of engine number 154 could have seen engine number 166 that distance, and he testifies that he did see engine number 166 at work in the upper yard while he was approaching, and when he was a thousand feet away, but he did not ring the bell, sound the whistle, or give any signal or warning of the approach of his engine, until he was within a few feet of engine number 166, and only three or four seconds before his engine collided with the other. No danger-signal or other warning was given of the approach of number 154, by the engineer in control of 166. Number 166, headed westward, had just pushed some cars west on the side track, and returning, backed down upon the main track a distance of four or five hundred feet to the point of collision. When 166 started to back down, the plaintiff tapped the bell several times, looking west in the meantime for signals from one of the crew, when he got down and began to break and shovel coal into the engine; while thus engaged he was bent over with his back toward the east, and just as he completed this work and straightened up for the purpose of taking his seat, the collision occurred.

The case has been twice tried in the district court of Atchison county. At the first trial a verdict was rendered awarding the plaintiff $ 11,000, in damages. This verdict was by the court set aside for error in the admission of testimony; and upon a second trial, occurring nearly a year afterward, a verdict was rendered in favor of the plaintiff for the sum of $ 12,000. Numerous errors are assigned and discussed by counsel for defendant, which we will consider.

I. It is first urged that if the plaintiff can recover at all, it must be under and by virtue of an act of the legislature approved February 26, 1874, which provides that: "Every railroad company organized or doing business in this state shall be liable for all damages done to any employe of such company, in consequence of any negligence of its agents, or by any mismanagement of its engineer or other employes, to any person sustaining such damage;" that under this statute a liability is attempted to be created against a railroad company where none existed at common law, and that it subjects railroad corporations to liabilities and penalties not imposed upon other corporations and persons under like circumstances. It is argued with great earnestness and ability, that railroad corporations are therefore, by this statute, denied the equal protection of the laws guaranteed by the fourteenth amendment to the constitution of the United States, and the statute should be held invalid. That question was presented to this court in the case of The Missouri Pacific Rly. Co. v. Haley, 25 Kan. 35. In that case it was decided, after full argument and a careful investigation of the question, that the statute is not in conflict with the fourteenth amendment to the constitution of the United States. Upon a reexamination of the question, we are satisfied that it was correctly decided, but we think it would be profitless to again review the authorities, or enter upon a further discussion of the subject. We must regard this ruling as the settled law of the state, unless it shall be declared to be erroneous by the supreme court of the United States. We might add, that in Iowa a similar statute exists. Very recently its validity was challenged upon the same grounds as are urged here. The supreme court of that state upheld the statute, and in deciding the case said:

"The argument, briefly stated, is, that under the statute railroad corporations are subjected to penalties and liabilities, which other persons and corporations engaged in like business are not subjected to. That the business of operating a railway is peculiarly hazardous to employes engaged in the operation of the road, must be admitted. Counsel have not called our attention to any business which is equally hazardous, and as the statute is applicable to all corporations or persons engaged in operating railroads, it seems to us it does not discriminate in favor of or against any one. We think it is a pure question of legislative discretion, whether the same penalties or liabilities should be applied to carriers by canal and stage coach, or to persons and corporations using steam in manufactories, as is prescribed by statute in relation to railroad companies. The provisions of section 30 of article 3 of the constitution of this state are quite similar to the fourteenth amendment to the constitution of the United States, if not in spirit identical, in so far as either can be said to prohibit the legislature from conferring exclusive privileges on any person, or imposing penalties upon any corporation, which are not shared by others under like circumstances; and it was held in McAunich v. M. & M. R. Co., 20 Iowa 338, that the statute under consideration did not conflict with the constitution of this state, and for like reasons we do not think it conflicts with the constitution of the United States." (Bucklew v. Cent. Ia. Rly. Co., 21 N.W., p. 103.)

II. A witness named John Steele was produced in behalf of plaintiff, who in response to questions gave the following testimony:

"Q. What business were you engaged in on the 11th of February, 1882? A. Running an engine on the Central Branch.

"Q. How long had you been running an engine there? A. About two years.

"Q. Had you any experience as a fireman before that time? A. Between three and four years.

"Q. Had any experience as a fireman on a switch engine at Atchison, Kansas, before that time? A. Yes, sir; fired a switch engine here in the yard for six months.

"Q. What was the general duty of a fireman on a switch engine, while the engine is being moved from one point to another in the yard, at that time?"

The defendant objected to the question last asked, stating as a ground of its objection that it called for the opinion of the witness without any proper foundation having been laid to ask the question; and further, that it was not a proper subject of expert testimony.

While we are inclined to agree with the counsel in their claim that the inquiry did not relate to that which was a subject of expert testimony, we still think that it was unobjectionable, and that the witness was competent to answer the same. It was not a question involving special skill or scientific knowledge. What the general duties of a fireman in the Atchison yards were, or, what is equivalent thereto, what duties were generally performed by firemen in the yards at that time, was a question of fact within the common observation of a great many people; and as stated by Chief Justice HORTON in Monroe v. Lattin, 25 Kan. 351, "it is a familiar rule that witnesses must speak to facts, and that they are not allowed to give opinions, unless they are experts, and then only upon questions of science and skill."

The facts here inquired of are such that anyone having personal knowledge thereof is competent to testify to the same, no matter how such intelligence may have been gained. But it will be observed that the witness Steele assumed to speak from personal knowledge. The preliminary...